Allen Andre Causey v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-378-CR





ALLEN ANDRE CAUSEY,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 0915672, HONORABLE BOB PERKINS, JUDGE PRESIDING

A jury found appellant guilty of murder, and assessed his punishment at imprisonment for fifty years. Penal Code, 63d Leg., R.S., ch. 399, sec. 1, § 19.02, 1973 Tex. Gen. Laws 883, 913, amended by Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, § 1, 1973 Tex. Gen. Laws 1122, 1123 (Tex. Penal Code Ann. § 19.02, since amended). We will affirm the judgment.

The sufficiency of the evidence is not challenged, but a statement of some of the facts will aid in understanding the disposition of appellant's ten points of error. The body of the murder victim was found on or near a parking lot at an apartment complex. While officers were investigating at the scene of the murder, a car was driven past the scene several times and the driver created suspicion in the minds of some of the observers who were at the complex. This information received and acted upon by investigating officers led to the appellant. Officers Michael Huckabay and Bruce Boardman asked the appellant to accompany them to the police station. He did so and while there made a written confession which officer Ruben Fuentes reduced to writing and typed. Officer Hector Polanco was the supervising officer.

Appellant's written statement, which was admitted in evidence, describes the murder.

My name is Allen Andre Causey. I am 26 years old. I was born on March 26, 1965. I live at 6700 Hilcroft, Austin, Texas. My home phone number is 928-3337. I work for Charlie Hill doing landscape. His phone number is 926-6331.

Right now, I am at the Austin Police Dept. giving this statement regarding the death of a Mexican girl on Sunday, August 11, 1991, in the early morning hours at the Springcreek Apts on Springdale Road, Austin, Travis County, Texas.

Saturday, August 10, 1991, I spent all day with Bobby Harrell. I have known him for about 7 years now. His sister is my girlfriend. Bobby had been with me over at my mother's house until about 10:30 p.m. We then went over to Springcreek Apts. on Springdale and sat over at Mike Kelley's apt. We were there until after midnight. We went over to Lillie's apt. There at Springcreek Apts. about 1:00 or 1:30 a.m. This was Sunday, August 11, 1991, by now. At one point, Bobby Harrell left first to go get some cocaine somewhere in the apt. complex. He came back and then a little while later I went down to the Circle K store and got some more cocaine. I came back to Lillie's apt. Bobby was still there.

He left again in a little while and it was about 5:30 a.m. and he was gone for a long time. I was wondering what was taking him so long so I went to look for him. When I got outside I saw Bobby Harrell out in the parking lot talking to some Mexican chick. Bobby told me that he had gotten into a fight with some black dude and I saw the black dude running off. At this time, the Mexican chick took off running and Bobby Harrell told me that she had beat him for some cocaine. This means that they were talking about some agreement and she did not want to come through with it. Bobby was trying to get some sex from her for drugs. When the Mexican chick took off running, I ran after her.

I caught up to the Mexican chick and I grabbed her by the right arm and jerked her and she fell to the ground. I held her down and started choking her and Bobby came up and started hitting her with his belt buckle. His belt buckle was made of metal and was large and kind of round with the straight little rod in the middle of it. I hit her a few times with my hand on her face. Bobby started kicking her. Bobby Harrell then picked up this large cement brick that was laying nearby and hit the Mexican chick with it several times. I'm not sure how many times he hit her with it, but I know for sure that he hit her in the front of the head and the back of the head.

We left her laying there and went to the parking lot where the Mexican chick had parked her car. Bobby Harrell got in the Mexican chick's car which was a brown colored small car like a Toyota. I think it was a 2Dr. The keys were in the car and Bobby drove it to 1157 Salina and I followed him in Bobby's wife's Olds Cutlass. When we got to the Marshall Apts where we left the Mexican chick's car, Bobby got out and wiped her car down with a rag and then got in the Cutlass with me and we went back to Lillie's apt. On the way back to Lillie's apt., Bobby Harrell through [sic] the rag he had used to wipe the Mexican chick's car with, out the window as we went down Airport Blvd.

This is the end of my statement. I can read and write the English language and I have read this statement and it is true and correct to the best of my knowledge and belief. I have given this statement on my own free will without the coercion or threats being made against me.

Medical Examiner Dr. Robert Bayardo's testimony concerning the victim's cause of death was consistent with appellant's confession.

In his first three points of error, appellant asserts that the trial court erred in failing to require the State to produce, either for appellant or for the trial court's in camera inspection, evidence in the possession of the State which constituted or would lead to impeachment and exculpatory material regarding officers Hector Polanco, Michael Huckabay, and Ruben Fuentes. In support of these points of error, the appellant urges matters which are not of record in this case and matters not of record contained in an appendix to his brief. We may not consider matters which are not of record. Beck v. State, 573 S.W.2d 786 (Tex. Crim. App. 1978), and those matters attached to the brief. Thompson v. State, 612 S.W.2d 925 (Tex. Crim. App. 1981).

On December 18, 1991, at a pretrial hearing on his motion to suppress the confession, appellant testified that the signature appearing in three places on the confession was his signature. However, he denied that he told the officers the matters related in the confession that were inculpatory, and testified that the inculpatory parts of the confession were not true. Appellant testified that, although he completed the eleventh grade in school, he could not read and that the officers obtained his signature on the confession by telling him that his signature on the papers would acknowledge that the officers had read to him his legal rights and that they had not beaten him. Since the officers had not beaten him and had read to him his legal rights, he signed the document at their request before witnesses who signed the confession. Appellant insisted that the confession was a fabrication written by the officers which was consistent with information they received from other sources. On the trial of the case, appellant during cross-examination read portions of the confession to the jury.

Appellant filed a motion including a general request that the State furnish him or the trial court in camera all exculpatory evidence and statements and other evidence which would tend to impeach the State's witnesses. A pretrial hearing was had on May 29, 1992, on the motion. No evidence was offered, but the appellant, among other matters, argued that he should be furnished police records of unrelated cases in which officers Polanco, Huckabay, Fuentes, and Boardman had been involved, as well as police personnel records of these officers. Appellant urged that these materials should be furnished him because be believed they would aid him in cross-examination and impeachment of these officers who obtained the appellant's confession. Appellant's argument to support his request for these materials was based on courthouse rumors and newspaper articles that the police department and the grand jury were investigating police officers who had allegedly obtained false confessions and committed perjury in unrelated cases. Appellant argued that the officers who worked his case and obtained his confession were among those being investigated. Appellant argued globally: "I want all of the impeachment material available in any state or state agency file regarding the methods, complaints, improprieties by which any of these officers have been involved in getting a confession. . . . Short of that, I would like every complaint having to do with the taking of confessions by all of these officers." Appellant did not know where these complaints would be, but "assume[d] a number of them [were] in custody of the Grand Jury office of the district attorney. There may well be others in internal affairs. I don't know where they keep these things in the police department, but I assume they're all in the City of Austin and the district attorney can find them." There were lengthy discussions, argument, and hypothetical circumstances considered as to how the materials appellant was seeking could be used at trial. The May 29th hearing concluded with the trial court stating that if furnished persuasive authority, he might grant appellant's motion in the future. "For the time being, I am denying it, but I am stating to you specifically that my denial as ordered today is not a final order; that I expect for you to bring me cases that you have on Thursday and I will be glad to look at it at that time and make a final ruling . . ."

On June 6, 1992, appellant filed an amended pre-trial brief supporting his motions seeking discovery of exculpatory and impeaching evidence which the State possessed, and another hearing was had on June 30, 1992. At that hearing, the trial court ordered the State to produce for his in camera inspection any records of confessions that Huckabay, Fuentes, Boardman, or Polanco had obtained where there was a claim that the confessions were totally fabricated or that the officers had supplied inculpatory parts of the confessions. Appellant did not object to the trial court's order nor did he complain that the State did not comply with the order. Since appellant did not obtain an adverse ruling he has failed to preserve for review the matter about which he complains on appeal. Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991); McKay v. State, 707 S.W.2d 23, 35-36 (Tex. Crim. App. 1985); Wallace v. State, 618 S.W.2d 67 (Tex. Crim. App. 1981). Appellant's first three points of error are overruled.

In points of error seven and eight, appellant contends that the trial court erred in not allowing the cross-examination of Hector Polanco concerning his testimony that he had never known anyone to have been involved in a coerced confession and that he had never testified untruthfully. In these points of error, appellant asserts that the alleged errors of the trial court occurred during Polanco's cross-examination. The State in its brief without explanation seems to assume and argues as if these alleged errors occurred during Polanco's cross-examination. Indeed the statement of facts improperly designates as cross-examination the portions of Polanco's testimony where the alleged errors occurred. This is curious since the State did not call Polanco as a witness. It was the appellant that called Polanco as a defense witness, and these alleged errors occurred during Polanco's testimony on direct examination by defense counsel. Polanco testified during direct-examination by defense counsel that: "I've never seen a coerced confession," and referring to trial testimony, "I always have told the truth." Defense counsel then argued that he should be allowed to impeach Polanco with specific instances from unrelated cases.

The credibility of witness may be attacked by any party, including the party calling him. Tex. R. Crim. Evid. 607. This rule has been recently interpreted in Adams v. State, 862 S.W.2d 139 (Tex. App.--San Antonio 1993, pet. ref'd).

Rule 607, permitting a party to impeach its own witness, does not permit a party to call a witness primarily for the purpose of impeaching the proposed witness, with evidence that would be otherwise inadmissible. Zule v. State, 802 S.W.2d 28, 34 (Tex. App.--Corpus Christi 1990, pet. ref'd). "When counsel knows that a witness has nothing favorable to say, counsel should not be permitted to parade inconsistent statements before the jury in the hope that they will be treated as substantive evidence." Hulen Wendorf, David Schlueter & Robert R. Barton, Texas Rules of Evidence Manual, Crim. 607 at VI-37 (3d. ed. 1991).

Id. at 148. The appellant here was attempting to get before the jury otherwise inadmissible evidence by impeaching Polanco whom he had called as a witness primarily for that purpose. Points of error seven and eight are overruled.

Appellant, in point of error four, asserts that the trial court erred in not allowing the cross-examination of Hector Polanco regarding his vulnerability to losing his job and to criminal prosecutions. In points of error five and six, which appellant consolidates for argument with point of error four, he urges that the trial court erred in not allowing him to cross-examine Huckabay and Fuentes regarding their concern for Hector Polanco's vulnerability to losing his job and to criminal prosecution. Appellant does not claim that Polanco and the other officers were biased against him. Rather he argues that Polanco knew his job was in jeopardy and that the grand jury was after him for misbehavior in securing confessions and his consequent testimony. Further he argues, were Polanco to admit having "cooked up" appellant's confession he would have been foolish to hope he could remain, employed and unindicted for long. Appellant argues Huckabay and Fuentes, while not being in jeopardy themselves, would "stick with their buddy in blue."

In further support of these points of error, appellant quotes his trial-court argument:

I think the points that I'm getting at were sufficiently clear in asking these questions. I believe they all go to the motives of the officers involved in testifying, their reasons for testifying as they do. . . . I have the right, under the Texas and federal Constitution, Sixth Amendment, Fifth and Fourteenth Amendments, Article 1, section 10, Article 1 section 13, the open court provision, Article 1 section 19, the relevant parts of the Code of Criminal Procedure. For effective cross examination I have to be able to look into the motives, to explore the motives of officers and other witnesses to testify as they do. And that's why I would pursue this line of inquiry with this officer and with future officers.

What I'm attempting to show is that, for example, an officer who has been arrested, it goes in [his] file, it follows him. An officer who has been investigated, an officer who's presently under investigation, an officer who's the subject of [a] Grand Jury inquiry, an[] officer who's the subject of public complaints, all of these go in their files. All of these affect the way they perform their job or may affect the way they perform their job. It may affect other officers who work with them. It may affect whether the officers cover for each other, if one of them has made a mistake of some kind. All of that sort of thing.

Polanco was the supervising officer, and he assigned Huckabay to take charge of the investigation of this murder because Huckabay was an officer with sixteen years experience. Polanco also went to the scene of the murder and he was present part of the time when Huckabay was interrogating appellant. Both Huckabay and Polanco testified that Polanco was never alone with appellant while appellant was being interrogated. Appellant testified at the hearing of his pretrial motion to suppress the confession, but he did not testify that Polanco did anything improper to obtain his confession. At the pretrial hearing, appellant contended he was tricked into signing the confession because Huckabay and Fuentes had assured him he was merely acknowledging that he had been read his legal rights and that he had not been beaten. However, at the trial, after Polanco testified, appellant testified that Polanco was alone with him in the interrogation room for at least an hour. Appellant testified he was induced to make the confession because Polanco choked him, threatened him with a lethal injection, and promised to have him "turned out." Appellant understood Polanco's promise to have him "turned out" to mean that Polanco could have appellant sexually assaulted by other inmates while he was incarcerated. Although officer Fuentes did not otherwise participate in the investigation of the murder, he typed appellant's confession. Fuentes was asked to type the confession because he typed with greater speed and was more accomplished at using the word processor than some of the other officers.

As we noted in our discussion of points of error seven and eight, Polanco was a defense witness. The appellant was attempting to impeach his own witness. A party may not call a witness primarily for the purpose of impeaching the witness with evidence that would not otherwise be admissible. Adams v. State, 862 S.W.2d 139 (Tex. App.--San Antonio 1993, pet. ref'd); Zule v. State, 802 S.W.2d 28 (Tex. App.--Corpus Christi 1990, pet ref'd); Pruitt v. State, 770 S.W.2d 909 (Tex. App.--Fort Worth 1989, pet. ref'd). Moreover, a witness's credibility may not be attacked on cross-examination by proof of specific instances of conduct which have not resulted in conviction. Tex. R. Crim. Evid. 608(b). Appellant was attempting to discredit Polanco's testimony with alleged acts of misconduct in unrelated cases. Appellant makes no claim that Polanco's alleged acts of misconduct resulted in conviction. Appellant's point of error four is overruled.

In considering appellant's points of error five and six we will assume but not decide whether he properly preserved for review the error he claims. In the portions of the record designated by appellant in the supplement to his brief we can find no place where he attempted to interrogate Huckabay or Fuentes about their own individual concern for Polanco's vulnerability to loss of his job or criminal prosecution. Appellant was attempting to ask Huckabay and Fuentes about specific acts of alleged misconduct by Polanco in unrelated cases, and whether such conduct would place his job in jeopardy. Both Huckabay and Fuentes testified that they had no first-hand knowledge about whether Polanco had ever fabricated or obtained false confessions or given untrue testimony. Huckabay admitted he had heard rumors about such matters. They had no first-hand knowledge that Polanco's job was in jeopardy or that he might be charged with criminal offenses. Appellant's attempt to place before the jury evidence of Polanco's alleged specific acts of conduct in unrelated cases was properly overruled by the trial court. Rule 608(b). See Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990) (discussion of Rule 608(b)); Ramirez, 830 S.W.2d 827 (Tex. App.--Corpus Christi 1992, no pet.). Points of error five and six are overruled.

In points of error nine and ten, appellant argues that the trial court erred in denying his requested jury instructions on assault with bodily injury and on reckless conduct as lesser included offenses. Appellant cites and quotes Saunders v. State, 840 S.W.2d 390, 392 (Tex. Crim. App. 1992), but appellant omits within his quotation that part of the rule which we believe controls our decision on these points of error. "If, however, the defendant simply denies commission of the offense . . . the charge on the lesser offense would not be required." Id. at 392. This part of the Saunders rule is supported by the cases cited. McKinney v. State, 627 S.W.2d 731 (Tex. Crim. App. 1982); McCardell v. State, 557 S.W.2d 289 (Tex. Crim. App. 1977). Appellant testified that his confession was untrue and that it was fabricated by the officers. In addition, he testified before the jury that neither he nor Bobby Harrell, the other party alleged to have participated in the murder, had ever seen the victim much less attacked her. Points of error nine and ten are overruled.

The judgment is affirmed.

Carl E. F. Dally, Justice

Before Justices Powers, Kidd and Dally^*

Affirmed

Filed: September 14, 1994

Do Not Publish

^* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).